Introduction
A lawyer, legal educator, and author, James C. Morton has written more than twenty-five legal texts
as well as numerous papers and articles. He is past president of the Ontario Bar Association and a
long-time human rights and community activist. He’s served as a governor for the Canadian
International Peace Project, counsel for the Canadian Somali Congress, and legal counsel (pro bono)
for Artists Against Racism, a registered charity fighting racial and religious prejudice. In this piece,
published in the Ottawa Citizen on October 13, 2008, Morton argues that tough punishment is not the
solution to the common problem of chronic offences in the area of petty theft.
“A Tough Approach That Might Work” by James C. Morton
In a season of tough talk on crime, I would like to propose a challenge to our political leaders. In this
country, one group of criminals commits a disproportionate number of crimes that we could easily
reduce with more coercive sentencing. However, our usual form of coercion—imprisonment—
doesn’t work for them. They need a different kind of sentence. But to make that happen—and to
significantly reduce the number of crimes they commit—would require a degree of will and wisdom
that our legislators can’t seem to muster.
The legal system refers to these men—they are almost all men—as chronic offenders. What
everyone knows—but the justice system doesn’t acknowledge—is that they are also drug addicts,
hooked on heroin or crack cocaine. They steal not for gain but to support their addiction, to pay for
their next fix.
This has nothing to do with getting high. For an addict, the point is to avoid the effects of withdrawal—
in the case of heroin, including cramps and muscle spasms, fever, cold sweats and goose bumps
(hence the phrase “cold turkey”), insomnia, vomiting, diarrhea and a condition called “itchy blood,”
which can cause compulsive scratching so severe that it leads to open sores. For addicts, drug use is
not a lifestyle choice that’s easy to change. Many have been addicted for their entire adult lives, and
as a result have spent half their lives behind bars, serving dozens of sentences for minor crimes.
These are the “revolving door” criminals that some critics point to—arrested, tried, sentenced to a few
weeks or months, then dumped back out on the street, only to be arrested, tried and convicted again
a few weeks later.
Canada has hundreds of criminals like that, mainly in the larger cities. Vancouver alone recently
identified 379. According to a report by the Vancouver Police Department, the vast majority were
addicted to drugs or alcohol. Many also suffer from a mental disorder, generally untreated. In the five
years between 2001 and 2006, Vancouver’s few hundred chronic offenders, as a group, were
responsible for 26,755 police contacts—more than 5,000 contacts per year, 14 a day. The costs are
staggering.
Arrests, prosecutions and incarcerations end up costing some $20,000 per criminal per month—per
month! There has to be a better way.
Punishment alone is not it, though, for a couple of reasons. For one, the idea of punishing criminals is
based at least partly on the concept of specific deterrence. You steal, we lock you up. Applied most
strongly to property crimes—which is what these offenders mainly commit—specific deterrence
assumes that the criminal is a rational actor who will consider: Is it worth it? And in fact, specific
deterrence often works; many offenders really do stop committing crimes after fairly short jail
sentences. But not addicts.
The problem is the presumption of a rational actor. That is exactly what we do not have with drug
addicts, who do not—usually cannot—stop to consider the likely punishment for a crime they are
about to commit. They see only the escape from the more immediate and dire punishments of
drug deprivation. By comparison, the threat of being caught and thrown in jail is nothing.
As well, because chronic offenders tend to commit minor crimes and draw short sentences—say, 30
to 90 days for theft—their lives shift constantly between jail and the streets.
We could use longer sentences to “warehouse” chronic offenders—the American “three strikes and
you’re out” approach. But long-term imprisonment would be a very high-cost way to deal with what is
really a public health issue.
And there’s the crux of the problem. The criminal justice system is not designed to treat addicts.
While prisons do provide some drug treatment, it is almost always short-term and underfunded. And
these offenders, with their short sentences, rarely get even that. The voluntary drug treatment
programs offered by the public health system seldom work for them either, because kicking an
addiction is extremely unpleasant and requires willpower and usually some money, neither of which
street addicts have.
Clearly, Canadians need more protection from chronic offenders than we are now getting. While their
crimes may be petty, their victims number in the thousands. And those victims are left not only with a
monetary loss, but also with a lingering fear that affects their sense of personal safety and their trust
in the criminal justice system. But blaming that system, as many do, misses the point—which is our
failure as a society to deal with severe drug and alcohol addiction.
With chronic offenders, the first step is to recognize that what we have is an issue of both criminal law
and public health. The next step is to require addicted offenders to undergo serious, long-term drug
treatment.
Canada’s experience with mandatory drug treatment is quite limited. In the late 1970s, British
Columbia passed legislation under which heroin addicts could be compelled to take part in an
intensive government-funded treatment program. The Supreme Court of Canada upheld the statute
but the provincial legislature ultimately repealed it, concerned about civil liberties. (This was the time
of One Flew Over the Cuckoo’s Nest.)
These days, Vancouver’s Downtown Community Court tackles street crime by taking guilty pleas and
moving the accused into treatment as part of their sentencing, but only with their consent, which
misses the point.
We’re less constrained with juvenile offenders. Since 1996, Alberta law has required minors with an
apparent alcohol or drug addiction to participate, with or without their consent, in an assessment and
treatment program. Saskatchewan and Manitoba have similar legislation and even allow parents of
drug-addicted children to ask a court to require treatment, whether or not the child is in trouble with
the law.
Although the research is scant, mandatory treatment does appear to have about the same success
rate as voluntary treatment. A 1970s American study looked at the effectiveness of methadone
maintenance treatment for those who entered the program under high, moderate or no coercion and
found no significant difference in outcomes for the three groups.
Given the costs of incarceration—not counting the costs to future victims—paying for mandatory drug
treatment for them hardly seems an issue, even if it only works some of the time. As for whether
mandatory treatment is somehow inhumane, how humane is it to sentence these addicts to
punishments we know don’t work and then dump them back on the street no better than before?
More than costs or moral qualms, though, the main obstacle to mandatory drug treatment for addicted
offenders is probably institutional. Both the justice system and the health system have entrenched
groups with turf to protect: prisons, parole boards, hospitals. Collaboration would mean breaching
walls; even with good intentions, a mandatory treatment program would raise irksome issues such as
which ministry pays, health or justice, and which is responsible. But don’t we elect our leaders to
solve such problems?
The question is not whether we will be soft on crime but whether we can be smart about crime. Crime
in the real world is not an exciting TV show. Crime has real costs and victims. Politics aside,
Canadians generally—and victims of crime specifically—deserve evidence-based criminal justice
policies that actually reduce crime. Our challenge is to make the tough choices that move beyond
“tough on crime” rhetoric and produce real change.